Monday, May 24, 2010

Using History To Teach Law

Interdisciplinarity was a major feature of my law school experience. I learned Property from an historian, Contracts from an economist, and Constitutional Law from a political scientist, and each professor made that expertise integral to the course. Much has been said and will be said about this “interdisciplinary turn” in legal education (see, for example, these threads on Balkinization and Prawsblawg), so I’d like to turn the conversation in a different direction. What does this mean for legal historians, present and future?

For those considering the law school world, one question is what to teach. Legal History* is not always a realistic possibility, and in almost all cases, will not alone satisfy a law school’s teaching requirements. So what other legal subjects lend themselves to an historical approach? My informal research suggests that among large first-year classes, Torts, Property, and Constitutional Law are standard fare for legal historians. In terms of electives, I’ve noticed legal historians clustering around Family Law, Trusts and Estates, Administrative Law, and Professional Responsibility (which at some schools can be taught as a history of the American legal profession). Also popular are variants of critical legal theory, comparative law, and anti-discrimination law. (I can vouch for bringing history to bear on Employment Discrimination, which I taught last fall.)

Many law schools also allow faculty to develop their own courses. Curious as to what other legal historians have come up with, I did a little digging. Here are some of my more interesting finds:

Legal historical courses on race, slavery, and civil rights are abundant. For example, at the University of Michigan, students can take advantage of a set of courses on Law in Slavery and Freedom, developed by Martha Jones, Rebecca Scott, and visitor Jean Hebrard. At the University of Virginia School of Law, Risa Goluboff teaches a seminar titled Civil Rights History from Plessy to Brown, which “recreat[es] the uncertainties that characterized civil rights doctrine in the pre-Brown era, and analyz[es] the disparate ways historians of civil rights have treated the topic.”

Two novel variations on this theme are Mary Dudziak's course on Thurgood Marshall and Civil Rights History, which she's blogged about here, and Brad Snyder's seminar (at the University of Wisconsin Law School) on Brown. During the first part of the semester, Snyder's students learn about the passage of the Fourteenth Amendment and its evisceration, traverse Jim Crow, and study the precedents that informed the Brown Court. From weeks five to eight, they cover the oral argument and read conference notes. During the rest of the course, they consider Brown’s complicated legacy. The major assignment is a re-argument of the case, with each student adopting the role of a different justice and then writing an opinion reflecting his or her justice’s views.

Law and Social Movements (or Law and Social Change) seems to be another popular legal-historical law school offering. In the version I took (from Serena Mayeri), readings included Lisa McGirr on the origins of the “new right,” Reva Siegel on sex equality, Ken Mack on civil rights lawyering, Steve Teles on the conservative legal movement, and Jane DeHart and Donald Mathews on the politics of the Equal Rights Amendment. I got the impression that students enjoyed the mix of history, theory, and litigation strategy. It looks like Lani Guinier, Harvard Law School, has offered something similar.

For my part, I’ve taught a seminar on Social Welfare and American Law, which I designed as a legal history of the welfare state. Readings included John Witt on workingmen’s compensation; Michael Willrich on progressive-era municipal experiments with "socialized justice"; Liz Cohen, Alan Brinkley, and Linda Gordon on New Deal social welfare legislation; Suzanne Mettler, Ira Katznelson, and Margot Canaday on the G.I. Bill; and Martha Davis and Felicia Kornbluh on welfare rights. For cases, I used a mix of important Supreme Court precedents (e.g., San Antonio Independent School District v. Rodriguez) and lesser-known state-level decisions (e.g., cases from different states on the validity of mothers’ pension legislation). I also included excerpts from works that have informed legal approaches to social welfare, such as Charles Reich’s “The New Property,” Michael Harrington’s The Other America, and Charles Murray’s Losing Ground.

I never thought I’d say it, but researching this post has made me long to go back to coursework. Harvard Law School offers two courses on legal history and political economy that I'd be thrilled to sit in on: a legal history seminar on the History of Economic Regulation with the legendary Morton Horwitz and a workshop on the Political Economy of Modern Capitalism, led by Christine Desan and Sven Beckert. Over at Depaul University College of Law, Allison Brownell Tirres teaches a legal history seminar on Law and Citizenship that caught my eye: it covers the founding to the present and includes readings by Linda Kerber, Rogers Smith, Dylan Penningroth, and Mae Ngai. I’d also love to take Rande Kostal’s course (University of Western Ontario) on Law Reform in the American Empire, which appears to build off his work on post-WWII U.S. legal reconstruction projects in Germany and Japan. Meanwhile, I envy the law students who have the opportunity to study Law and War, a topic with great contemporary resonance. John Witt (Yale Law School), Mary Dudziak (University of Southern California Law), and Harry Scheiber (University of California Berkeley School of Law) all teach variations.

Has anyone else come across interesting legal-historical law school courses? Do you think that an historical approach works particularly well for some legal subjects?

* For those developing legal history courses, refer back to this post for tips on finding sample syllabi.

4 comments:

Great post. I'm interested to hear what readers think about successfully integrating history into standard law school courses, such as torts or property. Are smatterings of legal history of value in teaching the subject? Are they of value in getting across legal history methodologies? Does historical analysis mesh with the normative, professional, or other perspectives that are normally part of these courses? I'd be interested to hear about your experiences.

For "regular" law courses, one obvious fit is using history in Constitutional Law. Some con law teachers focus on the founding period, but my first year con law course and an advanced con law course I'm developing for next year bring in more post-Civil War history. I think this is crucial to help students of the post-civil rights mvt era think about the current caselaw on equality, as well as to inform their ideas about the role of the courts over time. So in response to David's comment, in my class history is entwined in the substance of the course. Another role history can play, though, is to humanize legal abstractions. I like to bring the parties into the classroom. This makes the material more immediate and compelling, e.g. for students who might otherwise not be that interested in a particular doctrinal area. I use short video clips when possible, or historical images on power point. I use a fairly traditional casebook (Stone, Seidman, et al.), not the more historical Brest, Levinson et al.

My standard legal history course is a course on the US constitution in the 20th century, rather than an American legal history survey. Coverage goes beyond cases, and includes constitutional politics, especially constitutional amendments (e.g. mvt for woman suffrage). Some students take it to expand and solidify their understanding of constitutional law.

The courses of mine mentioned in Karen's great post (e.g. my Law & War course) are seminars, and I try to focus my seminars on my current research. I change the syllabus every year to incorporate new topics and recent books and articles, or to take up topics of student interest. My advice to new teachers is to create a seminar that you can modify every year to track what you're doing in your scholarship. For example, I used to teach a research seminar that sounds very much like Serena Mayeri's (Law and Social Change in Post-War America -- I would now say Post-1945). This was tremendously helpful as I was writing Cold War Civil Rights.

Bizarrely, even a course as mundane as Federal Tax Procedure, which I teach, can benefit from reference to the history behind the laws under discussion. In my class on IRS organization, for instance, it is instructive not just to address the present-day administrative law aspects but also to briefly trace the evolution of our current tax-enforcement structure with its roots in the revenue-raising measures of the Civil War as well as in later reform agitation during the Gilded Age. And even the somewhat tedious subject of tax refunds can be illuminated with a description of how wage withholding was imposed during World War II and of the particular political environment at the time.